University of Arkansas

System Division of Agriculture NatAgLaw@uark.edu $ (479) 575-7646

An Agricultural Law Research Article Feedlots: Rural America’s Sewer by Marilyn Lee Nardo

Originally published in ANIMAL LAW 6 ANIMAL L. 83 (2000)

www.NationalAgLawCenter.org

FEEDLOTS-RURAL AMERICA'S SEWER

By MARILYN LEE NARDO*

Over one billion tons of animal waste is produced each year in the United States by animal feedlot operations (AFOs). In 1995 alone, 63.5 million gal­lons of manure spilled from AFOs. Manure spills poison rivers, lakes, and ponds, seep into groundwater, causing fish kills, human disease, and death. The United States Environmental Protection Agency, reports that AFOs are a primary factor in the impairment of forty percent of the nation's water­ways. Despite these conditions, there are no federal standards for the stor­age, application, or management ofanimal waste. Th is Comment evaluates the existing regulation of AFOs under the Clean Water Act and proposes that new regulations and stricter enforcement of the current NPDES pro­gram are necessary to protect public and environmental health from manure contamination.

"Old MacDonald is dead and gone."l

1. INTRODUCTION

In 1995, animal feedlots in North Carolina discharged 63.5 million gallons of animal manure into rivers, lakes, and ponds,2 killing well over ten million fish. 3 Recorded fish kills from manure spills in Iowa, Minnesota, and Missouri increased from 55,000 fish to more than 670,000 fish between 1992 and 1996.4 Fish kills of this magnitude have tremendous potential to upset the balance of natural ecosystems and impact biodiversity. 5

* J.D. and Certificate in Environmental Law, Pace University School of Law, cum laude; B.S. and Master of Science Degree in Environmental Engineering, Villanova University. The author wishes to thank her husband Philip Nardo for his patience and support, as well as, Professor Suzan Porto at Pace University Law School for her guidance.

1 Ken Silverstein, Meat Factories, SIERRA, Jan.-Feb. 1999, at 1 (visited Apr. 1, 1999) <http://www.sierraclub.org/sierra/19990 l/cafo.html>.

2 U.S. ENVTL. PROTECTION AGENCY, ENVIRONMENTAL IMPACTS OF ANIMAL FEEDING OPERATIONS, app. B at 11-12 (1998).

3 MINORITY STAFF OF SENATE COMM. ON AGRIC., NUTRITION, & FORESTRY, 104TH CONG., ANIMAL WASTE POLLUTION IN AMERICA: A,"I EMERGING NATIONAL PROBLEM 2 (Dec. 1997). In 1995, a thirty-five million gallon spill, in North Carolina alone, killed ten million fish. /d.

4/d.at5. 5 U.S. ENVTL. PROTECTION AGENCY, supra note 2, at 1.

[83]

84 ANIMAL LAW [Vol. 6:83

In 1997, the estimated United States animal manure production was 1.37 billion tons. 6 Manure contains oxygen-demanding sub­stances, ammonia, nutrients (nitrogen and phosphorus), solids, odorous compounds, and pathogens. 7 Increased oxygen demand and ammonia result in fishkills. 8 Drinking water with a high level of ni­trates can be potentially fatal to infants, causing blue baby syndrome.9

Excess nutrients also lead to eutrophication,10 which is a factor in the growth of toxic algae blooms such as Pfiesteria piscicida.1 1 The effects of human exposure to Pfiesteria include memory loss, respiratory problems and skin rashes.1 2 In 1991, the Neuse River in North Caro­

3lina had a fishkill of over one billion fish linked to Pfiesteria blooms. 1:Further, manure contains pathogens (disease causing organisms) which can cause illness leading to death in humans and animals, espe­cially infants and those with compromised immune systems. Some of the pathogens contained in manure are Escherichia coli (E. coli), Sal­monella and Cryptosporidillm. 14 According to the United States Envi­ronmental Protection Agency (EPA), in 1993, Cryptosporidillm infected 400,000 residents in Milwaukee. The incident resulted in more than one hundred deaths of people with compromised immune systems. 15

Seventy-five percent of the earth's surface is water; however, less than one percent is fresh water available for human use.1 6 Fifty-one percent of the nation's population obtain their drinking water from

6 MII\ORITY STAFF OF SENATE COMM. 01\ AGRIe., NUTRITION, & FORESTRY, suprn note 3. The manure production number is based on 1997 data compiled for Senator Harkin with assistance from the U.S. Dep't of Agric. Economic Research Service (Noel Gollehon). Telephone Interview with Noel Gollehon, USDA, Economic Research ServiCe (ERS) (April 2, 1999).

7 U.S. EI\VTL. PROTECTION AGENCY, supra note 2, at 1. Manure is also a source of antibiotics, pesticides, hormones, salts and trace metals. Id.

sId.

9 Id. at 42.

IO Eutrophication is the process in which a water body becomes rich in dissolved nutrients and deficient in dissolved oxygen. WEBSTERS NEW COLLEGIATE DICTIONARY 391 (8th I'd. 1981 l.

11 U.S. ENVTL. PROTECTION AGENCY, supra note 2, at 1.

12 MINORITY STAFF OF SENATE COMM. ON AGRIC., NUTRITION, & FORESTRY, supra note 3, at 10.

13 Sharon Guynup, Cell from Hell, 84 SIERRA 34, 34 (1999), auailable in 1999 WL 3590338.

14 See U.S. ENVTL. PROTECTION AGENCY, supra note 2, at 17 tbl. 2-1. For a more complete list of the pathogens contained in manure along with human health effects. see MINORITY STAFF OF SENATE COMM. ON AGRIC., NUTRITION, & FORESTRY, supra note 3, at 6. Despite the serious human health risks of improper manure disposal, this article focuses on the effects of manure on water resources and the aquatic life contained therein.

15 David Letson & Noel Gollehon, Confined Animal Production and the Manul't Problem, CHOICES, at 1 (3rd Qtr. 1996l.

16 U.S. EI\VTL. PROTECTION AGENCY, NATIONAL WATER QUALITY Il'VE:-ITORy-1996 REPORT TO CO:-lGRESS 98-99 <1998l.

85 2000J FEEDLOTS

groundwater. 17 In rural areas, this figure is much higher, as ninety­five percent of that population rely on groundwater for their water uses. IS EPA reported in the National Water Quality Inventory 1996 Re­port to Congress that agriculture was the primary cause of water qual­ity impairment to the nation's rivers and lakes. 19 In addition, EPA stated that agriculture was one of the main contributors to ground­water pollution. 20 Twelve states reported that waste from feedlots was included among their top ten contaminant sources to ground water.:Z1

Agricultural waste impairs approximately 173,629 river miles, twenty­five percent of the river miles surveyed;22 3,185,000 lake acres, forty­nine percent of the lake acres surveyed;23 and 2976 estuary square miles, twenty-seven percent of the estuary square miles surveyed. 24

Feedlot waste alone impairs at least 13,890 river miles.25 Impairment indicates that the water's aquatic life has been degraded and that pol­lution has interfered with public use.26

Despite these facts, there are no federal standards for the storage, application, or management of animal waste. 27 Additionally, the Clean Water Act (CWA) remains an ineffective means of enforcement against manure discharges.28 Part II of this comment examines the consolida­tion of family farms into animal feeding operations (AFOs). This sec­tion also reports on national manure production and explains its impact on water quality. Part III describes the regulation of AFOs under the CWA.29 Part IV examines policy and regulatory reform. Part V discusses data deficiencies that impact the regulation of AFOs under the CWA. Part VI provides a brief summary of the impacts of the beef

17 Id. 18 Id. at 99. 19 Id. at ES-13. 20 U.S. GEN. ACCOl;l'TIl'G OFFICE, BRIEFING REPORT TO THE U.S. SE:-i. CO;\IM. 01\

AGRIC., NUTRITION, & FORESTRY, A1\IMAL AGRICTLTlJRE: INFOR;',lATION 0" WAsn: MAN­AGEMENT AND WATER Q[;ALITY ISSl;ES 9 (1995l.

21 U.S. ENVTL. PROTECTION AGENCY, supra note 16, at 110 fig. 6-6. 22 Id. at ES-15. 23 Id. at 51. The category of lake acres includes reservoirs and ponds. Id. 24 Id. at 63. The data for the National Water Quality Inventory is provided to EPA

by all 50 states, American Indian Tribes, Territories, Interstate Water Commissions, and the District of Colombia. Id. at ES-2. It would require tremendous resources to survey every lake, river, stream and estuary in the United States: thus, a survey is taken. Id. at ES-7. The percentage of total water resources surveyed are as follows: 190 of all river and stream miles (693.905 miles), 400 of all lakes, ponds and reservoirs (16,819,769 acres), 72'7c of all estuaries (28,819 miles (excluding Alaska)), Id. at ES-7. Animal agriculture waste is primarily manure, but can also include "urine, animal car­casses, bedding. poultry litter, and wastewater." U.S. GEN. ACC0l701TI:-iG OFFICE. supra note 20, at 1 n. 1.

25 Id. at 37. Estuaries are the coastal waters where the rivers meet the oceans. great lakes, and the Gulf of Mexico. Id. at 57.

26 Id. at ES-6. 27 See MINORITY STAFF OF SE:-iATE C01\1;',!. 001 AeRIC , NUTRITION, & FORESTRY, supra

note 3, at 25. 28 33 U,S,C, §§ 1251-1387 (1994l. 29 Id, § 1342.

86 ANIMAL LAW [Vol. 6:83

industry on environmental resources other than water. Finally, Part VII concludes that either new legislation or stricter enforcement of the CWA's National Pollutant Discharge Elimination System (NPDES) program is needed to control the animal waste problem currently fac­ing the United States.

II. CONSOLIDATION OF FAMILY FARMS

Historically, livestock producers were viewed as useful compo­nents of communities. These family farms, which members of the com­munity operated, provided jobs and food, and served to boost the local economy. However, due to economic pressures, the number of family farms has dwindled, leading to a consolidation of animal production into animal feeding operations.30 An AFO confines live animals, dead animals, feed, manure, urine, and production operations in a small area.31 A typical AFO may contain thousands of animals. The animals are fed while they are confined and do not graze in pastures or range­land.32 Large corporations generally own these megafarms. 33 This method of corporate farming has made owners such as Frank Perdue and Don Tyson extremely wealthy.34 Meanwhile, according to the

30 Office of Wastewater Management. U.S. Department ofAgriculture and U.S. En­vironmental Protection Agency Unified National Strategy for Animal Feeding Opera­tions March 9.1999 (visited Oct. 1, 1999) <http://www.epa.gov/owm/finafost.htm>. While the "final" Unified National Strategy was issued on March 9, 1999, changes were made to the website document on May 12, 1999. See Drew L. Kershen & Patricia E. Dougherty, Council for Agricultural Science and Technology (CAST), A Report on the ABA-Special Committee on Agricultural Management Roundtable on Environmental [s­sues in Animal Feedlots (visited on Mar. 27, 1999) <http://www.cast-science.org/9/ llaba2.htlm>. Utilization of large concentrated animal feeding operations has in­creased since the 1970s in all livestock sectors. See U.S. GEN. ACCOCNTING OFFICE. supra note 20, at 2. For example, use of hog inventories held in AFOs has increased from 40'7( in 1978 to 77fJ< in 1994. Id. Cattle sales from AFOs containing more than 1000 head increased from 62% in 1974 to 78fJ< in 1992. Id. at 33. While the total number of operations in the cattle sector decreased by 2fJ<, this negligible decrease does not effect the need for change in the expanding environmentally destructive feedlot industry. Id. In the dairy cow sector, inventory in the largest category of AFOs (100 or more cows I increased from 30'7< in 1978 to 5291- in 1994. Id. at 37.

31 Office of Wastewater Management. supra note 30, at 4. 32 Id. at 4-5. See also Silverstein, supra note 1, at 2. See the following websites for

information on the ethical treatment of farm animals, as well as additional information on the environmental impact of AFOs: Factory Farming. (last modified Sept. 2, 19991 <http://www.factoryfarming.com>: Factory Farm Project: Factory Farming Introduction (visited Apr. 4, 2000) <http://www.factoryfarm.com>: U.S. Environmental Protection Agency (EPA) Homepage, (last modified Feb. 1, 2000) <http://www.epa.gov/>: Council for Agriculture Science and Technology (CAST), The Science Source for Food, Agricul­tural, and Environmental Issues (last modified Jan. 12.2000) <http://www.cast-science. org>.

33 Silverstein, supra note 1, at 2-3. The vertically integrated farm was pioneered b\ Frank Perdue. Id. Perdue controls every phase of the operation from producing feed. [I'

slaughtering and packaging the birds. Id. Vertical integration wiped out approximate]" one million small chicken farmers across the nation. Id.

34 [d. at 2.

87 2000] FEEDLOTS

United States Department of Labor, poultry workers perform one of the most dangerous jobs in the nation, under grim working condi­tions.35 Besides exploiting their workers and animals, these corpora­tions are running family farmers out of business, creating a situation where "Old MacDonald is dead and gone."36 What has arrived in their place are large corporate farms that confine thousands and often mil­lions of farm animals in small land areas known as AFOs.37

A. The Number ofAnimal Feeding Operations

The United States Department of Agriculture (USDA) 1992 Cen­sus reported approximately 511,192 confined livestock operations across the nation. 38 According to a USDA Economic Research Service (ERS) analysis, 6600 of the 511,192 total operations confined more than 1000 Animal Unit (AU) equivalents.39 Between 1987 and 1992, the total number of AUs increased by 4.5 million. 40 However, during that same period, the number of AFOs decreased.41 Between 1978 and 1994, the number oflarge AFOs in the dairy sector increased by thirty­five percent while the total number of operations decreased by sixty percent. 42 This last statistic is a dramatic illustration of the major con­solidation which swept the agriculture industry, whereby millions of animals were grouped and confined on small areas of land.43

There are approximately 6600 concentrated animal feeding opera­tions (CAFOs) that would fall under regulation of the CWA based upon

35 [d. at 4. Poultry workers are only paid $8.60 an hour to work in unacceptable conditions. [d.

36 [d. at 1.

37 MIKOHITY STAFF OF SENATE COM"'!. ON AGRIC., NI'TRITIOJ\;, & FORESTRY. supra note 3, at 3.

38 U.S. GE:-J. ACCOl'"TIKG OFFICE, supra note 20, at 61 n.4. The number of total oper­ations was quoted to be 450.000. [d. However, the number was updated and published in Letson & Gollehon, supra note 15, at tbl. 1.

39 U.S. GEl\'. ACCOI:NTlJ\;G OFFICE, supra note 20, at 61. Animal unit equivalents under the CWA are calculated according to estimated manure production for each spe­cies. [d. at 2 n.5. One thousand animal units is defined in each sector as follows: 1000 slaughter and feeder cattle; 30,000 broilers or layers (liquid manure system l; 700 ma­ture dairy cattle; 2500 hogs (over 55 pounds); 55,000 turkeys. [d. at 59 n.3. According to the ERS, very few if any. feedlots actually use the liquid manure system. If this is true, poultry feedlots would be excluded from the CWA entirely. Telephone Interview with Noel Gollehon, ERS, USDA (Oct. 15, 1999).

40 See Office of Wastewater Management, supra note 30, at 5. The increase in the average number of animal units per sector between 1978 and 1992 are as follows: cattle 56'7r, dairy 937<, hog 1347<, layer 176'f{, broiler 1487<, and turkey 129'k. [d.

41 [d.

42 U.S. GE:\'. ACCOl'NTI:-iG OFFICE, supra note 20, at 60. 43 Office of Wastewater Management. supra note 30, at 5.

88 ANIMAL LAW [Vol. 6:83

size alone.44 Yet, this figure does not include animals on confined oper­ations with less than 1000 AUs.45 The number of animal units on AFOs containing less than 1000 AUs is approximately 40,374,000.46

B. Manure Production and Impact on Water Quality

The estimated annual animal manure production in the United States during 1997 was 1.37 billion tons. 47 Nationwide, animals pro­duce 130 times more waste than humans. This is equivalent to five tons of animal waste per person. 48

Nevertheless, no federal standards regulate the storage, applica­tion, or management of animal waste.49 An AFO with merely two hun­dred head of dairy cows produces as much nitrogen as a sewage plant in a city of five thousand to ten thousand people.50 The dairies in the Central Valley of California produce more waste than a city of twenty­one million people. 51 Outside of Washington, D.C. on the Delmarva Pe­ninsula, six hundred million chickens each year produce over 3.2 bil-

TABLE 1: C01'FI~ED OPERATIONS WITH !\fORE TIIA."! 1000 AU EQt:lvALE1'TS

Livestock! Number of Operations with Estimated Number of Poultry Sector >1000AU equivalents Animals on Site

Beef Feedlot Broiler Dairy Hog Layer Turkey

Total

943 1398 939

2578 599 102

6559

7,098,000 246,667.000

1,252,000 15,270,000

209.911,000 21,703,000

501,901,000

44 See U.S. GE"-:. AcceW:-:TI0:C OFFICE, supra note 20, at 61. See discussion infra Part III.

45 This article primarily focuses on animal feeding operations with at least 1000 AUs.

46 Letson & Gollehon, supra note 15, at tbl. 1. n MINORITY STAFF OF SE1'ATE CO!\IM. ON AC;HIC., NI'TRIT[()!'i, & FORESTRY, supra

note 3, at 2. The manure production number is based on 1997 data compiled by the U.S. Senate Comm. on Agric., Nutrition, & Forestry with assistance from the ERS, USDA. Telephone Interview with Noel Gollehon, supra note 6.

48 MI0:0RITY STAFF OF SENATE COl\nl. 01' ACRle., NI!TRITlO~, & FORESTRY, supra note 3, at 4. Imagine each of your neighbors holding five tons of waste in their back," ards in unregulated lagoons prone to leakage and failure. Id.

TABLE 2: U.S. AI\f1'l'AL MA.'URE PRODI'CTlO0:

Livestock! Estimated Annual U.S. Manure Poultry Sector Production (tons/yr.l

Cattle 1.229,190,000 Hogs 116.652,300 Chickens 14,394,000 Turkeys 5,425,000

49 Id. at 25. 50 Id. at 3. 51 Id.

89 2000] FEEDLOTS

lion pounds of raw waste, equivalent to the waste produced by a city of almost 500,000 people.52

Manure on AFOs is typically stored in lagoons.53 The lagoons are filled with liquefied manure containing nitrogen, phosphorus, patho­gens, and other organic matter.54 Typically, the manure lagoons are huge open pits that can be thirty feet deep and cover more than ten acres.55 For centuries, farmers have spread manure on their land to serve as nutrients for both the crop and the soi1.56 Today, the mega­AFOs that confine hundreds of thousands of hogs or millions of chick­ens produce far more manure than the land can absorb.57 Excess manure is then "dumped into lagoons which serve as cesspools from which millions of gallons have spilled."58 Much of the manure, which can be a valuable resource, either runs off and poisons surface water or seeps into the groundwater, as a result of this lagoon.59

Excess nutrients (nitrogen and phosphorus) discharged into the water overstimulate the growth of organic matter, such as algae.6o The oxygen that would otherwise be available for fish and other aquatic life is absorbed by the decomposition of organic matter.61 Manure also re­leases pathogens which result in restrictions on water uses such as drinking, fishing, shellfish harvesting, or recreation.62 The United States Geological Survey (USGS), as part of its National Water Qual­ity Assessment (NAWQA), determined that manure was the primary

52 [d.

53 Silverstein, supra note 1, at 1. 54 U.S. ENVTL. PROTECTION AGENCY. supra note 2, at app. B at 11-1. While animal

waste run-off is created by feedlots and rangelands, this paper focuses on animal feed­lots of 1000 head or more. See U.S. GEN. ACCOUNTING OFFICE, supra note 20. at 2.

55 Silverstein, supra note 1, at 2. 56 Letson & Gollehon, supra note 15, at 1. See Reducing Water Pollution from

Animal Feeding Operations. Before the Subcommittee on Livestock, Dairy, and Poultry and the Subcommittee on Forestry', Resource Conservation and Research of the Commit­tee on Agriculture U.S. House of Representatives, 105th Congo (1998) (statement of Michael Cook, Director Office of Wastewater Management, U.S. E.P.A. & Elaine Stan­ley, Director, Office of Compliance U.S. EPA).

57 Silverstein, supra note 1, at 2. 58 [d. "Ken Midkiff, Chapter Director for the Sierra Club in Missouri, grew up rais­

ing hogs on a farm in Illinois. 'We never worried about the environmental impact be­cause there wasn't any. The problem is that nature never intended for 80,000 hogs to [defecate] in the same place. Every new corporate [AFOl runs ten family farms out of business.''' [d.

59 See generally Letson & Gollehon, supra note 15; Robert L. Kellogg & Charles H. Lander (National Resource Conservation ServiceIUSDA), Trends in the Potential for Nutrient Loading from Confined Livestock Operations (Conference held Jan. 19-21, 1999 in Chicago, Illinois) (last modified Apr. 30, 1999) <http://www.nhq.nrcs.usda.gov/ land/pubs/ntrend.html>; Natural Resources Conservation ServicelUSDA, Animal Manure Management Issue Brief 7 (Dec. 1995) (last modified Oct. 18, 1996) <http:// www.nhq.nrcs.usda.gov/BCS/nutri/rca7.html>.

60 U.S. GEN. ACCOL'NTING OFFICE, supra note 20, at 11. 61 [d.

62 [d.

90 ANIMAL LAW [Vol. 6:83

source of nitrogen in the northeast region of the United States.63 In the southeast, central, and western regions of the United States, manure was the second most significant source of nitrogen. 64 In the northeast and southeast regions, manure was the primary cause of phosphorus inputs and the second most significant source in the southeast, central, and western regions.65 USGS concluded that the high density of con­fined animal production in the northeast region, especially dairy pro­duction, caused the high levels of nitrogen and phosphorus found in water resources.66 Similarly, in the southeast region, USGS correlated the high levels of nitrogen and phosphorus to the large number of AFOs for hog and poultry production.67

III. REGULATION OF AFOs UNDER THE CLEAN WATER ACT

The CWA prohibits the discharge of pollutants into the waters of the United States.68 The "discharge of a pollutant" is defined in section 502( 12) as "any addition of any pollutant to navigable waters from any point source."69 The definition of a point source includes "concentrated animal feeding operations (CAFOS)."70 EPA regulations define "con­centrated animal feeding operations" as follows: 1) have more than 1000 animal units confined;71 or 2) have more than three hundred animal units confined, and pollutants are discharged into navigable waters either directly or via a manmade conveyance;72 or 3) are of any size, and the Director (EPA or the state permitting authority) deter­mines on a case-by-case basis that the AFO significantly contributes to water pollution taking into account the size and location of the opera­tion, as well as the means of conveyance. 73 If the AFO has three hun­dred AUs or less, it must also discharge through a man-made device. as stated above, or directly into navigable waters to be classified as a CAFO.74 The term AFO simply means an animal feeding operation of any size which: 1) confines animals for a total of forty-five days or more in any twelve month period; and 2) crops, vegetation forage growth, or post-harvest residues are not sustained over any portion of the lot or facility.75 The term CAFO, as used in this Comment, means an animal

63 [d. at 13. 64 [d. 65 [d. 66 [d. 67 [d. 68 33 U.S.C. § 1311<a) (994), 69 [d. § 1362(2). 70 [d. § 1362(4). 71 40 C.F.R. § 122 <:>.pp. B (998), See U.S. GEN. ACCOl'NTING OFFICE, supra note 20.

at 61. 72 40 C.F.R. § 122 app. B (998), 73 See 40 C.F.R. § 122.23(C) (998). "Director" is defined as the EPA Regional Admin­

istrator or the State Director for state administered programs. [d. § 122.2. 74 See [d. § 122.23(c). 75 See [d. § 122.23(b)(1).

2000] FEEDLOTS 91

feeding operation that meets the definition of CAFO under EPA regulations. 76

There is an exception to the term "point source" for "agricultural stormwater discharges and return flows from irrigated agriculture."77 A second exception to the term "point source" is provided for animal feeding operations that only discharge when a twenty-five year, twenty-four hour storm event occurs. 78

Discharge of pollutants by CAFOs are regulated under section 402 of the CWA, the National Pollution Discharge Elimination System (NPDES) Program. 79 At present, forty-three states (including the Vir­gin Islands) have been delegated authority to issue permits under sec­tion 402.80 As stated above, according to 1992 USDA census data, there are approximately 6600 concentrated animal feeding operations with 1000 animal unit equivalents.8! However, only 1987 of those CAFOs have point source permits under the CWA.82 This allows 4613 CAFOs with a minimum of 4,613,000 animal units to escape regula­tion under the CWA.

The CWA contains four major gaps in the regulation of AFOs. First, there is a formidable hurdle to a case-by-case designation of smaller AFOs (less than 300 AUs). Smaller AFOs do not require a NPDES permit until EPA (or the State Director) conducts an on-site inspection of the operation and determines that the operation should and could be regulated under the NPDES program.83 The inspection requirement creates a major hole in the regulation of smaller AFOs Cless than 300 AUs) in states where resources to perform inspections are lacking. According to EPA, some AFOs that should have NPDES permits do not because oflimited resources to identify these operations at both the federal and state leve1.84 EPA estimates between 2000 and 6000 AFOs need to be designated as CAFOs, requiring them to obtain NPDES permits.85 Since there are forty-three state administered NPDES programs,86 EPA is at a major disadvantage to enforce inspec­tions. A dairy operation with two hundred head of dairy cows, which produces as much nitrogen as a city sewage plant of 5000 to 10,000 people, would not be regulated under the CWA unless specifically dis­

76 See Id. *122 app. B. 77 33 U.S.C. *1362 (4) (994), 78 40 C.F.R. § 122 app. B (998). 79 33 U.S.C. § 1342 (994),

80 Telephone Interview with Gregory Beatty, Office of EPA Enforcement-NPDES Program (April 2, 1999).

81 U.S. GE:'oJ. ACCQl:NTI:'oJG OFFICE, supra note 20, at 2. 82 Id. at 2 n.6. 83 40 C.F.R. § 122.23(c)(3) (998).

84 U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 2 n. 6. 85 David Bloom & Paula T. Cotter, Concentrated Animal Feeding Operations: A De­

veloping Bod:.' of Law, 14 No.6 NAAG Nat'l Envtl Enforcement J. 3, 4 (999). 86 Telephone Interview with Gregory Beatty, supra note 82.

92 ANIMAL LAW [Vol. 6:83

covered, inspected, and designated by the State Director as a CAFO.87 Director is defined as the EPA Regional Administrator or the State Director for state administered programs.88 Further, in a 1995 EPA guidance document, Guide Manual on NPDES Regulations for Concen­trated Animal Feeding Operations, EPA stated that for state adminis­tered programs only the State Director could designate an AFO as a CAFO.89 In response to this problem, EPA has proposed changes to the regulations dealing with CAFOs under the NPDES program.90 The changes would authorize the EPA Administrator to designate an AFO as a CAFO in states with NPDES administering authority.91 The pro­posed regulation provides a more efficient mechanism for EPA to bring an AFO into a NPDES program under state authority. However, EPA currently has underutilized enforcement mechanisms in place under CWA sections 309, 504, and 509.92 While the proposed regulation may increase efficiency in regulating AFOs and allow EPA to respond quickly to complaints, EPA always had a statutory obligation to moni­tor state administered programs.93 Therefore, no guarantee is estab­lished that the proposed regulation will have any practical effect.

Second, there is an exception for AFOs that only discharge during a twenty-five year, twenty-four hour storm event.94 According to EPA, many AFOs fall within this exception.95

Third, AFOs with less than 1000 AUs must also discharge through a man-made device or directly into navigable waters which "originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation" in order to be classified as a CAFO.96 Since 98.5% of the 511,192 animal feeding operations have less than 1000 AUs,97 503,524 operations are virtually unregulated if the AFOs do not meet these narrow classifications under the CWA. In addition, there is an excep­tion for "agricultural stormwater discharges and return flows from ir­rigated agriculture."98 Since non-point source pollution is the primary cause of agricultural impairment of water resources,99 these discharge

87 MINORITY STAFF OF SENATE COMM. ON AGRIC., NUTRITION, & FORESTRY, supro note 3, at 3; 40 C.F.R. app. B § 122.

88 40 C.F.R. § 122.2 (1998). 89 Revisions to the National Pollutant Discharge Elimination System Program and

Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation, 64 Fed. Reg. 46,058, 46,074 (1999) (to be codified at 40 C.F.R. pts. 122, 123, 124, and 131) (proposed Aug. 23, 1999),

90 Id. 91 Id. 92 33 U.s.C. §§ 1319(a), 1364, 1369 (1994). 93 Id. § 1319(a) (1994). 94 40 C.F.R. § 122 app. B (1998). 95 U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 61 n.6. 96 40 C.F.R. § 122.23(c)(2)(ii) (998), See also U.S. GEN. ACCOUNTING OFFICE, suprn

note 20, at 59. 97 See U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 61. 98 33 U.S.C. § 1362(4) (1994). 99 Id. at 1.

93 2000] FEEDLOTS

restrictions create a major regulatory gap for manure run-off and spills.

Fourth, if a common owner were to split up a large CAFO (greater than 1000 AUs) into smaller AFOs (smaller than 300 AUs) that were neither physically adjoining nor share a common area or system for the disposal of wastes, the two smaller AFOs would be unregulated by the CWA unless designated as CAFOS.lOO Thus, the large AFO owner could delay, or possibly escape regulation under the CWA, by splitting up large operations and waiting for case-by-case designations. At a minimum, the delay this loophole creates provides the large AFO owner the financial benefit of non-compliance with the CWA.

IV. POLICY AND LEGISLATIVE REFORM

There are no federal regulations that set national standards for the storage, application, or management of animal waste. 101 As in many industries, the corporate farm lobby aggressively opposes regu­latory reform. The farm lobby has tremendous political power. 10:2 Si­erra Club reports that many lawmakers have a personal interest in the continuation of profitable corporate farming. 103 The American Meat Institute has a budget of approximately $8.5 million for lobbying alone. 104 In 1997, the meat industry maintained a force of 124 lobby­ists, many of who were either former Capitol Hill employees or had formerly held administrative postS.105

100 40 C.F.R. 122.23(bJ(2) 11998),

101 MIKOHITY STAFF OF SENATE COM~1. ON AGHlC., NPTRITION. & FOHESTRY, supro note 3, at 25.

102 The Center for Responsive Politics, Lobbyist Spending By Industry. (last modified Jul. 29, 1999) <http://www.opensecrets.org/lobbyists/98industry.htm>; see also ROHERT COHEN, MILK THE DEADLY POISON 11998). In his book, Mr. Cohen addresses the im­mense political influence of the largest producers of dairy products such as Monsanto. Id.

103 Silverstein, supra note 1, at 4. Former Senator Lauch Faircloth (R-N.C.) is a ma­jor stockholder in Lundy Packing, a hog processor in North Carolina. Id. North Carolina has the largest spills of manure. totaling 35 million gallons. Faircloth also has $19 mil­lion invested in other hog operations. Id. Faircloth's biggest campaign donors included "North Carolina Pork Producers Association, the American Meat Institute, and the Na­tional Pork Producers Council, not to mention industry behemoths like ConAgra, Car­roll's Foods, and of course Lundy Packing." Id. Additional lawmakers own stock in corporate farming enterprises. For example, Representative Christopher Cannon iR­Utah) has up to $500,000 in Premium Beef of Nebraska and Norman Sisisky ID-Va.l owns stock worth $250,000 in ConAgra. Id. Wendy Lee Gramm, wife of Senator Phil Gramm (R-TexJ, sat on the board ofIBP, a major meatpacker, that contributed not only to the senator's presidential campaign in 1996 but also contributed $31,000 over a four­year period to the National Republican Senatorial Committee, which the Senator chaired. Id.

104 ld.

10.5 Id.

94 ANIMAL LAW [Vol. 6:83

A. Unified National Strategy

EPA and USDA recognize that AFOs are a primary factor in the impairment of forty percent of the waterways surveyed by the states. 106 In addition, the two agencies recognize the potential human health risks associated with manure run-off.l°7 However, the govern­ment asserts that a strong livestock industry is essential to national and local economies, the viability of many rural communities, and the maintenance of a high quality diet for the American public. lOS Thus, EPA and USDA base their approaches toward implementing policies to deal with the problem of AFO pollution on sustainable development.

As one of the first initiatives under President Clinton's Clean Water Action Plan released in February 1998,109 EPA and USDA worked together to address the water quality and public health risks of improper manure management by America's meat production indus­try.110 In March 1999, the Agencies released the Unified National Strategy for Animal Feeding Operations (National StrategyJ,uI The National Strategy sets forth guiding principles to minimize water quality and public health impacts caused by AFOS.II2 The National Strategy established a national performance expectation "that all AFOs should develop and implement technically sound, economically feasible and site-specific Comprehensive Nutrient Management Plans (CNMPs) to minimize impacts on water quality and public health. "IIJ The National Strategy supports a balance of voluntary initiatives cou­pled with regulation under the CWA NPDES Program. 114 There are three types of CAFOs that have been identified as priorities for the regulatory program: 1) significant manure producers-AFOs with more than 1000 AUs; 2) CAFOs with unacceptable conditions-AFOs with direct discharges to water; and 3) CAFOs which significantly con­tribute to water quality impairment. II5

The National Strategy is a step in the right direction, but it is not the equivalent of a regulation. Thus, the National Strategy does not

106 Office of Wastewater Management, supra note 30, at 3. 107 [d at 6. It has been reported that excess nutrients in water contribute to toxic

algae blooms of Pfiesteria piscicida and Cryptosporidium. [d. 108 [d at 3. Many claim that a meat diet is not a sustainable diet from an economic

and environmental perspective. See FRA."lCES MOORE LAPPE, DIET FOR A S~IALL PLA:"'EI (1982); JOHCi ROBBINS, DIET FOR A NEW AMERICA (1987); .JEREMY RIFKl:"'. BI':yo)l]) BI':EI (1993 I. Additionally, these authors, along with others, claim that meat and dairy prod­ucts are not only unnecessary for a healthy diet, but are dangerous to human health. See COHDI, supra note 104; HOWARD LYMAN, MAD COWBOY (1998J.

109 Office of Wastewater Management, supra note 30. at 3. 110 [d. 111 Id. 112 [d. at 4. 113 [d. at 6. A CNMP may contain the following elements: 1) feed management. ~

manure handling and storage, 3) land application of manure, 4) land management, and 5) record keeping. [d.

114 [d. at 10; 33 U.S.C. § 1342 (19941. 115 Office of Wastewater Management, supra note 30, at 16-17.

95 2000] FEEDLOTS

impose any binding requirements on regulatory agencies, states, local­ities, or regulated communities. llB The National Strategy recognizes the inadequacy of the current method of locating AFOs with unaccept­able conditions.!17 Nonetheless, EPA and USDA concluded that "many, if not most, AFOs that now have unacceptable conditions will voluntarily address those conditions to avoid the requirement to have a permit under the NPDES program."ll8 This overly optimistic ap­proach lacks a logical basis. Under the existing NPDES program, an AFO that has unacceptable conditions, but does not fall within the nar­row definition of CAFO under EPA regulations, is not required to have a permit until the administering agency designates them as a CAFO.ll9 If CAFOs with unacceptable conditions have not been ad­dressing those conditions, there is no logical reason to believe they will now without a regulatory mandate that requires them to do so.

The National Strategy discusses three major incentives for AFOs to implement Comprehensive Nutrient Management Plans (CNMPs). The incentives are as follows: 1) smaller AFOs "should be" able to exit the regulatory program at the end of a five-year permit term; 2) good faith incentive; and 3) tax incentives. I20 In order for a smaller AFO to come into compliance with the CWA, they may have to incur major expenses to upgrade their manure management techniques. EPA's in­centive that an AFO "should be" allowed to exit the NPDES program after five years is a weak incentive for an unregulated AFO to volunta­rily notify EPA of their existence. The second assertion that AFO own­ers and operators will comply with the National Strategy based on good faith alone is equally unrealistic. If the AFOs are not implement­ing sound manure management practices prior to the National Strat­egy, there is no reason to believe that the situation will change merely because EPA and USDA published a policy with no regulatory mecha­nism to back it up. The third incentive, based on proposed tax breaks for compliance, is the most realistic of the three incentives. However, the tax breaks are merely in the "development" and "proposal" stage. I2I If the monetary incentives materialize, they will be the most effective incentive to voluntary compliance.

Implementation of the National Strategy is critical to the preser­vation of the quality of our nation's water. However, the National Strategy alone will not induce an industry environmentally out of con­trol and politically protected to change. In The National Strategy must

116 Id. at 4. 117 Id. at 17. See infra Part V. B. 118 Office of Wastewater Management, supra note 30, at 17 (emphasis added). 119 40 C.F.R. § 122 app. B (1998); 33 U.S.C. § 1342 (1994). 120 Office of Wastewater Management, supra note 30, at 18-19. 121 Id. at 19. 122 See Robert Smith, Livestock Production: The Unsustainable Environmental and

Economic Effects of an Industry Gut of Control, 4 BL·FF. ENVTL. L.J. 45, 76 (1996), See als9 Center for Responsive Politics, supra note 104 (providing additional information about political contributions by the corporate farm lobbyl.

96 ANIMAL LAW [Vol. 6:83

therefore be used as a springboard for national and state regulations forcing AFOs to develop CNMPs and minimize impacts on water qual­ity and human health. 123

B. Senator Harkin's Bill

Senator Tom Harkin CD-IA) introduced the Animal Agriculture Reform Act (Act) to the United States Senate Committee on Agricul­ture, Nutrition and Forestry on October 28, 1997. 124 Unfortunately, the bill expired in committee during the 105th Congress and has not been re-introduced. 125

Despite its demise, the legislation represents the beginning of leg­islative reform regarding AFOs. As such, it is important to understand what the Act could have accomplished. Senator Harkin's bill attacked the problem of AFO pollution at the source by regulating manure man­agement. The Act would have required AFO owners to provide detailed plans on the following: 1) minimization of animal waste runoff and leaching into water; 2) operation, maintenance, and inspection of waste storage facilities; 3) handling, transporting, storing, applying, and treating animal waste; 4) building manure containment systems in accordance with national standards; and 5) procedures for spill pre­vention. 126 The Act would have required management of excess liquid manure, that could not be applied to land in accordance with nutrient restrictions or put to another beneficial use, to comply with waste treatment standards. USDA would have administered the Act, having the authority to shutdown an AFO for either failing to submit an ade­quate manure management plan or for failing to comply with an ap­proved management plan. 127 Smaller AFOs would have fallen within the scope of the Act; whereas, many of these AFOs escape regulation under the CWA's current regulatory framework. 128 Although the Act did not make it out of Committee, similar legislation could be intro­duced in future sessions of Congress to regulate AFOs. Indeed, as the animal waste crisis becomes more severe, Congress will have to act.

123 On August 6, 1999, EPA released the Draft Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations. The purpose of the docu­ment is to guide permit writers in the first phase of the priorities under the National Strategy. While EPA states in this document that they are in the process of revising existing regulations, the Guidance document is not a regulation. For information on AFOs, see the EPA Office of Wastewater Management, Animal Feeding Operations rAFOs) (visited Oct. 25, 1999) <http:www.epa.gov/owm/afo.htm>.

124 S. 1323. 105th Congo (1997). 125 Telephone Interview with Alison Fox, Congressional Science Fellow, U.S. Senate

Committee on Agric., Nutrition & Forestry (Feb. 29, 2000). 126 MINORITY STAFF OF SENATE COMM. ON AGRIC .. NUTRITIO;-';, & FORESTRY, supra

note 3, at 21. 127 ld. 128 ld. AFOs with a capacity exceeding 1330 hogs, 57,000 chickens, 270 dairy, or 640

feeder cattle would be required to implement waste management plans in accordance with the Act. ld. The thresholds for regulation in Senator Harkins' bill are lower than the CWA thresholds. U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 59 n.3.

2000] FEEDLOTS 97

V. DATA DEFICIENCIES IMPACTING ENFORCEMENT OF THE

CLEAN WATER ACT

Data accuracy is critical to the expeditious identification of pend­ing and existing environmental and public health hazards. The inaccu­racies of AFO data cripple EPA's ability to identify AFOs and enforce the NPDES program.

A. Water Quality Data

States provide data to the EPA for the National Water Quality Inventory. 129 However, the states merely survey a small percentage of total water resources. 130 Since only nineteen percent (693,905 river miles) of the 3.6 million total river miles were surveyed for the 1996 Inventory,131 the status of 2.91 million river miles is unreported. 132

Similarly, only forty percent of total lake acres, and seventy-two per­cent of estuary square miles were surveyed; thus, 25,010,941 lake acres and 11,154 estuary square miles remain unreported.l33

The void in information results in an inability to make informed decisions. This is evident from the situation surrounding the National Strategy. The National Strategy was based on the 1998 National Water Quality Inventory - 1996 Report to Congress. 134 The 1998 Na­tional Water Quality Inventory was published in April 1998, however, the data used for the report is over five years 01d. 135 Even though states are required to provide water quality data every two years, this data is not always forthcoming. 136 The numbers in the 1996 Inventory, published in 1998, are based on measurements taken in 1994 and 1995. 137 While the National Strategy was intended to influence regula­tion, it is based on information that is outdated and incomplete, lessen­ing its effectiveness as a policy too1. 138

129 U.S. ENVTL. PROTECTION AGENCY, supra note 16, at ES-2. 130 Id. at ES-7.

131 Id. at ES-14 fig. ES-2. 132 Id.

133 Id. at 47, 57. 134 U.S. DEP'T OF AGRIC. & U.S. ENVTL. PROTECTION AGENCY, UNIFIED NATIONAL

STRATEGY FOR ANIMAL FEEDING OPERATIONS, 63 Fed. Reg. 50,192, 50.195 n.7 (Sept. 21, 1998). See also Office of Wastewater Management, supra note 30. at 6 n.9.

135 U.S. El'ovTL. PROTECTION AGENCY, supra note 16, at ES-2. 136 Id. 137 Id. 138 From the 1992 National Water Quality Inventory to the 1996 National Water

Quality Inventory, there was a reduction in the percentage of impaired (surveyed) river and stream miles by 2%; lake acres by 5%; and an increase in the impaired estuary square miles by 6%. U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 8; U.S. Ei'<VTL. PROTECTIOl'> AGEl'>CY, supra note 16, at 33, 47, 59. There were less river miles and lake acres surveyed for the 1996 inventory. Id. Further data analysis is beyond the scope of this article.

98 ANIMAL LAW [Vol. 6:83

B. NPDES Permits

As of April 1995, the total number of permitted CAFOs was 1987.139 According to EPA, the number of CAFOs with point source permits probably exceeds this figure.1 4o Thus, EPA officials have been forced to admit that the Agency's permit database, Permit Compliance System (PCS), is incomplete.141 Many of the forty-three states dele­gated authority to issue NPDES permits regularly fail to report permit issuances to EPA.142 In addition, PCS only tracks "major" discharg­ers. 143 A "major" discharger is defined as a "facilit[y] that dischargers] at least one million gallons per day or more or [a] non-municipal facilit[y] whose discharge has a significant impact on the receiving stream."144 Since EPA currently lacks the ability to accurately deter­mine the number of permitted CAFOs, the Agency cannot adequately enforce the NPDES Program.

C. Total Number of AFOs

The 1997 Census of Agriculture has been available since April 1999; however, the compilation of the total number of AFOs with greater than 1000 AUs has yet to be calculated.145 The total number of 1000 AU AFOs, approximated at 6600, is based on the 1992 Census of Agriculture. 146 EPA believes that there could be as many as 10,000 additional AFOs that should be regulated by the CWA based on size alone. 147 Since AFOs with more than 1000 AUs require NPDES Per­mits,148 the number of 1000 AU AFOs is critical to EPA. USDA ERS officials stated that the calculation of the total number of AFOs with greater than 1000 AUs was a special data request.149 Therefore, a crit­ical piece of enforcement data is neither systematically calculated nor provided to EPA.

The Office of Enforcement of the NPDES Program in Washington, D.C., stated that in order to ensure national participation in census taking, USDA is reluctant to provide regulatory agencies with specific

139 U.S. GEN. ACCOUNTING OFFICE, supra note 20. at 2 n.6. HOld. 141 Id. 142 Id. 143 Letter from Debra Villari, Associate Branch Chief. Data Management Branch.

U.S. Environmental Protection Agency. to Marilyn Nardo, Law Student, Pace Univer­sity School of Law (May 4, 1999) (on file with author),

144 Id. 145 Portions of the 1997 census data were available on the internet in April 1999.

USDA-ERS intend to recalculate the number of AFOs with greater than 1000 AUs; however, their efforts have been delayed. Telephone Interview with Noel Gollehon. supra note 39.

146 U.S. GEN. ACCOUNTING OFFICE, supra note 20, at 60. 147 Bloom & Cotter, supra note 87, at 3. 148 40 C.F.R. § 122 app. B (998). 149 Telephone Interview with Noel Gollehon, supra note 6.

99 2000] FEEDLOTS

details of census compilation. 150 Thus, to preserve the accuracy and confidentiality of the census of agriculture data, certain information may not be readily available to the regulating agencies, such as EPA. In addition, Title 13 of the Federal Criminal Code has strict require­ments for confidentiality with respect to federal government requests for information. 151 This further handicaps EPA's ability to compare the total number of permitted CAFOs with the number ofCAFOs actu­ally in existence.

VI. OTHER ENVIRONMENTAL IMPACTS OF THE BEEF INDUSTRY

The meat industry relies on animal feedlots which contribute to air pollution, soil erosion, desertification, deforestation, biodiversity, world hunger, animal welfare, global environmental impacts, numer­ous economic impacts, and adverse health effects. This section briefly addresses the first three: air pollution, soil erosion, and desertification. 152

A. Air Pollution

Livestock production is a significant factor in the release of green­house gases. 153 Greenhouse gases are released by the destruction of forests to create pastures; the burning of animal waste; fuel powered equipment to grow, transport, and harvest cattle feed; and from the cattle themselves. 154 Cattle production facilities emit methane, carbon dioxide (C02), and nitrous oxides. 155 The world's 1.3 billion cattle re­lease approximately sixty million tons of methane (twelve percent of all methane released into the atmosphere).156 Livestock, in general,

150 Telephone Interview with Gregory Beatty. supra note 6. 151 Telephone Interview with Noel Gollehon, supra note 6. Ms. Gollehon's organiza­

tion compiled the total number of animal operations with more than 1000 AU equivalents.

152 Fish kills create a tremendous risk of eliminating and threatening aquatic spe­cies. U.s. ENVrL. PROTECTION AGENCY, supra note 2. According to the Government Ac­counting Office, "livestock grazing has eliminated and threatened more plant species than any other cause." SMITH, supra note 124, at 65. The majority of flora and fauna are concentrated on the riparian zones of rivers and streams. [d. Those same environmen­tally fragile zones face the brunt of destruction caused by cattle grazing. [d. "Livestock can degrade riparian zones by overgrazing and trampling streamside vegetation, de­stroying banks and thereby increasing sediment levels and bacterial counts in the water and raising water temperatures." [d. (citations omitted) In addition, "extensive cattle grazing makes it impossible for wild animals to compete ... for food." [d. As a result, there has been a dramatic reduction in bighorn sheep, elk, pronghorn antelope, and others. [d.

153 Greenhouse gases are defined as gases in the atmosphere that absorb infrared energy and contribute to the air temperature. BENARD J. NEBEL & RICHARD T. WRIGHT, ENVIRONMENTAL SCIENCE (6th ed. 1998), They include carbon dioxide, water vapor, methane, nitrous oxide, chlorofluorocarbons, and other halocarbons. [d.

154 SMITH, supra note 124, at 61. 155 RIFKIN, supra note 110, at 223. 156 [d. at 226. (citing Michael Gibbs & Kathleen Hogan, Methane, EPA JOURNAL

(March/April 1990).

100 ANIMAL LAW [Vol. 6:83

are estimated to release twenty percent of all global methane emis­sions.l57 Additionally, the burning of forests to create grazing land emits both methane and CO2.158 In Latin America, the burning of for­ests to expand pastures resulted in the release of approximately 1.4 billion tons of CO2.159 Methane traps twenty-five times as much heat from the sun as does CO2.160 Scientists at the National Center for At­mospheric Research predict that in the next fifty years, methane will become the primary target of worldwide attempts to eliminate the emissions of greenhouse gases. 161

In addition to greenhouse gases, odor is a significant problem with AFOS.162 Residents of states such as North Carolina must live with the stench of lagoons holding millions of gallons of thick, foul-smelling manure. 163 Ken Silverstein, a Sierra Club member and author, went to tour the New River area of North Carolina.l64 Mr. Silverstein reported,

lf1rom a distance, the lagoon looked like a charming swimming hole. Up close the water was thick and brown, and when the wind shifted. I was overpowered by an unbelievable, indescribable stench that caused me to gag. I covered my mouth and nose with one hand and hit the gas. When I finally risked taking a breath some thirty seconds later, the smell of pig [manureI was still strong in my nostrils. 165

A North Carolina resident, R.T. Walston, stated that ifhe is in the yard when the stench hits, he has to sprint for the house.l66 Mr. Wal­ston's wife wears a surgical mask to cut the grass and his grandchil ­dren often refuse to visit because of the stench. 167 While these odors may seem insignificant to people hundreds of miles away, for those who must raise their families surrounded by the stench of manure, it is a serious problem.

157 SMITH, supra note 124, at 61 (citing Alan B. Durning & Holly B. Brough, Taking Stock: Animal Farming and the Environment, WORLDWATCH, Paper No. 103, at 27 11991l.

158 RIFKIN, supra note 110 at 226.

159 SMITH, supra note 124, at 45.

160 RIFKIN, supra note 110, at 226. 161 Id.

162 Larry D. Jacobson, et al., Odor Rating System Demonstration Project Final Report (last modified Mar. 1997) <http://www.bae.umn.edu/extens/manure/progTams/odordem. htm>. Detection of odor from a particular feedlot depends on several factors such as sensitivity of smell, topogTaphy of the land, size and orientation of the feedlot, wind velocity, wind direction, and temperature. Id.

163 SILVERSTEIN, supra note 1, at 4. 164 Id.

165 Id.

166 Id. at 4. 167 Id.

2000] FEEDLOTS 101

B. Soil Erosion and Desertification

The majority of cattle grazing occurs in the western United States. Unfortunately, those areas are the most effected by desertification. 168 The leading causes of desertification are: overgrazing by livestock, over-cultivation of farmland, waterlogging and salinization of irrigated lands, and deforestation. 169 Cattle production is the primary contrib­uting factor to all of these leading causes of desertification. 170 The two primary means by which cattle damage land is by stripping vegetation and compacting the soil. 171 Overgrazing and other problems contribute to the significant degradation of nearly 685 million acres (85%) of rangeland in the Western United States. 172 Overgrazing alone caused a twenty-five to fifty percent yield reduction on 430 million acres of rangeland in the West.l73

Twenty-nine percent of the earth's landmass is eroding from desertification. 174 Severe desertification will eventually render land unproductive for any use. The agency charged with administering pro­grams on federal public lands is the Bureau of Land Management (ELM). As such, BLM controls livestock grazing on federal lands. 17G

BLM manages approximately 177 million acres of land in the western United States. 176 BLM reports that nearly seventy-five percent of pub­lic lands need restoration due to overgrazing.l77 Each year an addi­tional fifty-two million acres become permanent wasteland. unproductive for any use.l78 Additionally, seven billion tons of topsoil is destroyed annually in the United States, eighty-five percent of which is attributable to livestock production. 179 Loss of topsoil is a se­rious environmental problem because it takes one hundred to five hun­dred years for nature to produce one inch of topsoip80

168 SMITH, supra note 124, at 58. Desertification is defined as the conversion of range­land, rain-fed cropland, or irrigated cropland to desert-like land. with an associated drop in agricultural productivity of 10C;( or more. G. TYLER MILLER, JR., LIVI'lG 1'1 THE E'lVIRO'lME'lT (2000). It is usually caused by a combination of overgrazing, soil erosion, prolonged drought, and climate change. Id.

169 S"nTH, supra note 124, at 59. 170 Id.

171 Id. 172 Id. 173 Id. 174 Id.

175 Bruce M. Pendery, Reforming Livestock Grazing on the Public Domain: Ecosystem Management Based Standards and Guidelines Blaze a New Path for Range Manage­ment, 27 E'lVTL. L. 513, 514 (1997).

176 Id. at 522.

177 S"nTH, supra note 124, at 60. 178 ld. at 59.

179 Id. at 60. Worldwatch Institute reports that thirty-five pounds of United States topsoil are eroded for each pound of beef produced. Id.

180 SMITH. supra note 124, at 57.

102 ANIMAL LAW [Vol. 6:83

VII. CONCLUSION

AFOs can no longer hide in the shadows of major industrial pol­luters. Due to recent administrative and legislative scrutiny, AFOs are now in the environmental spotlight. Despite the immense political in­fluence of the corporate farm lobby, regulatory reform is inevitable. Legislatures are no longer protecting the family farmer. The result is that the public is less sympathetic to mega-corporate "animal facto­ries."181 The public demands accountability for the damage caused by AFOs to their health, homes, neighborhoods, communities, air, land, and water. 182 Recently, a citizens group called Community Association for Restoration of the Environment (CARE) convinced a district court in Washington that facilities and systems used to transfer and spread manure on the CAFO were "point sources."183 The court further held that the CWA stormwater discharge exception184 did not relieve the CAFO's responsibility of manure applications to the land which then discharge into waters of the United States.l85 The court interpreted "point source," broadly, resulting in a very favorable decision for the citizens group and the environment.

EPA's and USDA's collaborative effort at policy reform, the Na­tional Strategy, provides an effective framework for spearheading leg­islative change to stop the millions of gallons of manure leaking into our nation's water, killing our fish, and making us sick. 186 Human con­sumption of manure-contaminated water has contributed to many un­

181 JAMES MAsor-.- & PETER SINGER, ANIMAL FACTORIES (1990). 182 Kershen & Dougherty, supra note 30. See Concerned Rosebud Area Citizens '-.

Babbitt, 34 F. Supp.2d 775 (D. D.C. 1999). In Concerned Citizens, a citizens group chal­lenged the Bureau of Indian Affairs' (BIA) approval of a lease between the Rosebud Sioux Tribe and Sun Prairie, a Nebraska General Partnership, to build a "sizable pork production facility." Id. at 775. The case was dismissed when the BIA conceded that the lease was a major federal action and violated NEPA. Telephone Interview with Gret­chen G. Biggs, Animal Law Center (Apr. 2, 1999). The attorneys for the plaintiff consid­ered this a major victory for the environment. Id. But see Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563, 565 m.D. Tex. 1997) (plaintiffs filed claim against EPA, USDA, and NRCS for violations of CWA and NEPA with regard to CAFOsL In Cross Timbers, the court held that EPA had no duty to oppose a state envi­ronmental strategy that did not comply with effluent limitations contained in a Texa~

General Permit for CAFOs. !d. at 570. Thus, the citizen suit was barred. Id. The Cross Timbers court further held that EPA is "entirely exempt from obligation under NEPA for the preparation of an impact statement ... [and] the agency is similarly exempt from NEPA obligations predicated on regulations implementing such impact state­ments." Id. at 572. For an examination of emerging caselaw, see Bloom & Cotter, supra note 87, at 14.

183 Community Ass'n For Restoration of the Env't v. Sid Koopman Dairy (CARE), 5-1 F. Supp.2d 976, 980 m.D. Wash. 1999),

184 33 U.S.C. *1362(14) (1994L 185 CARE, 54 F. Supp.2d at 981. 186 For an expanded discussion of the regulation of AFOs under the CWA, see Gail S.

Shane, Concentrated Animal Feeding Operations: Will Increased Enforcement and More Stringent Regulations Under the Clean Water Act Adequately Protect Public Health and the Environment, 13 No.3 NAAG NAT't. ENVTL. ENFORCE:I<IENT J. 1 (1998).

103 2000] FEEDLOTS

necessary deaths. Legislation is required if we are to protect human health and the environment. The current NPDES program requires ei­ther increased enforcement or more stringent regulations to prevent AFOs, which produce millions of gallons of manure a year, to escape regulation. The 1.37 billion tons of animal manure produced annually in the United States must be regulated as would 1.37 billion tons of human waste. 187 Only then will our environment be safe from the de­structive by-products of animal feedlot operations.

187 See MIl'ORITY STAFF OF SE:-lATE COM:Vl. 01' ACRIe., NLTTRITIO:-l, & FORESTRY. supra note :3. at 21. Senator Harkin proposes that the storage and treatment of manure should be required to utilize similar treatment as used with municipal wastewater. Id.